P. v. Hernandez
Appellants Victor Hernandez and Larry Hernandez were convicted in a jury trial of first degree murder of Gregory Acuna.[1] The jury further found allegations pursuant to Penal Code sections 12022.5, subdivision (a), 1203.06, subdivision (a)(1), 12022, subdivision (a)(1) and 186.22, subdivision (b)(1)(A) true as to appellant Victor Hernandez.[2] The jury also found allegations pursuant to sections 12022, subdivision (a)(1) and 186.22, subdivision (b)(1)(A) true as to appellant Larry Hernandez. In a bifurcated proceeding, the trial court found true the special circumstance allegation that Larry Hernandez had sustained a prior conviction of first degree murder within the meaning of section 190.2, subdivision (a)(2). Appellant Larry Hernandez was sentenced to a term of life in prison without the possibility of parole, plus one year. Appellant Victor Hernandez was sentenced to a term of 38 years to life.
We find that all of Larry Hernandezs claims lack merit with the exception of his contention that the trial court erred in its response to the jury question relating to aider and abettor liability. Court conclude that error requires reversal or reduction of his first degree murder conviction to second degree murder. As to appellant Victor Hernandez, we find that all of his claims lack merit with the exception of the claim that the trial court erred in imposing a three year enhancement to his sentence. Court modify his sentence and otherwise affirm.
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